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Friday, March 25, 2011

Movement for bi-national LGBT couples?

We've talked before about how bi-national LGBT couples can get caught in a terrible bind because of their immigration status. This is particularly striking for married couples, who (because of DOMA) cannot reside together.

In what appears to be the first such action of its type, an Immigration Judge in Manhattan has adjourned deportation proceedings for the Argentine lesbian spouse of an American citizen to allow the couple to proceed with their application to have their marriage recognized for purposes of federal immigration law.

Monica Alcota, 35, who came to the US a decade ago, married her partner of nearly three years, 25-year-old Cristina Ojeda, last August in Connecticut.

The couple’s attorneys, Lavi Soloway and Noemi Masliah, argue that their clients’ marital status should qualify Alcota for permanent residency, as would be the case with any different-sex couple....

In a March 22 hearing in the US courthouse at 26 Federal Plaza in Lower Manhattan, Immigration Judge Terry A. Bain gave the couple the go-ahead to press their claim with the U.S. Citizenship and Immigration Services (USCIS) –– a unit of the Department of Homeland Security –– through what is known as Form I-130, a petition to have Alcota recognized as “the spouse of USC.”....

Ojeda said Bain’s action “acknowledged our marriage,” and she added that when DOJ changed its posture on DOMA, she felt that President Barack Obama had “definitely” moved into the couple’s corner in their fight.

There is no way of knowing how long the DOMA litigation will go on, but it certainly will still be alive in December. It is also likely Ojeda’s I-130 application on Alcota’s behalf will still be working its way through USCIS –– or potentially through appeal of an adverse decision. In that event, Alcota’s next appearance before Judge Bain could amount to nothing more than a perfunctory status update and a further adjournment.

Of course, every day the couple can stay together is precious in their lives.

Now, let's note what this isn't. This isn't a recognition of their marriage, a green card, or a legal residency. It is simply a right to file a claim with the USCIS that they are married. That claim can still be denied.